Supreme Court upholds use of death penalty drug

A bitterly divided Supreme Court on Monday upheld a drug combination used by Oklahoma to execute death row inmates.

In the most closely watched capital punishment case of the court’s term, and one that provoked strong feelings from both sides, a conservative 5-4 majority rejected a challenge to the sedative midazolam.

“The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims,” Justice Samuel Alito Jr. wrote.

The case called Glossip v. Gross is the Supreme Court’s first substantive death penalty decision since a 2008 decision that upheld Kentucky’s use of a lethal three-drug cocktail for executions. It brought to the fore intense emotions in a highly unusual scene, as four different justices read parts of their opinions from the bench.

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“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Justice Stephen Breyer declared in one of several dissenting opinions.

The decision came on the last day of the court’s term, when justices also upheld an Arizona redistricting commission and struck down EPA clean air rules.

The court’s new death penalty ruling comes about 14 months after Oklahoma’s execution of convicted murderer Clayton Lockett went horribly awry. Lockett writhed in apparent agony and remained alive for 43 minutes after being injected with an untested combination of chemicals.

The decision issued Monday, on the last day of the court’s 2014-2015 term, did not judge the death penalty itself. In a 1976 decision, the Supreme Court ruled capital punishment did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Since then, 1,410 U.S. inmates have been executed, according to the Death Penalty Information Center.

Instead, the new decision centered on the specific drugs used in lethal injection.

The court previously concluded in the 2008 Kentucky case that only measures that present a “substantial” or “objectively intolerable” risk of serious additional harm violate the Eighth Amendment.

In the botched Locket execution, Oklahoma used the sedative midazolam, along with pancuronium bromide, to paralyze the inmate, and potassium chloride to stop the heart. Midazolam was a substitute. American manufacturers stopped making sodium thiopental, the sedative at issue in the 2008 Kentucky case, and European manufacturers will not export it.

Other states, including Florida and Arizona, also used midazolam in lethal-injection executions last year. Florida Attorney General Pamela Jo Bondi filed a brief supporting Oklahoma’s position, as did the attorneys general for other states including Idaho, Texas and Georgia.

Still other states have adopted new execution protocols as an alternative to lethal injection, with the Utah legislature in March approving use of firing squads as a backup method.

The ruling Monday came too late for one of the four inmates named in the original Oklahoma petition, Charles Warner, was executed last January. Warner was convicted of raping and killing an 11-month-old child.

The other three inmates, Richard E. Glossip, John M. Grant and Benjamin R. Cole, are still awaiting execution. Glossip, whose name is first on the petition, was convicted in 1998 of first-degree murder. He maintains his innocence.

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Underscoring the strong feelings on the court, Justice Sonia Sotomayor read part of her dissent from the bench, arguing that the prisoners “have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks.” In an unusual move, Breyer also read part of a separate dissent, to which Justice Antonin Scalia responded in turn.

“A vocal minority of the court, waving over their heads a ream of the most recent abolitionist studies, a superabundant genre, as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good,” Scalia fumed.

During a heated oral argument in April, the conservative Alito likewise complained about a “guerrilla war against the death penalty” while liberal Justice Elena Kagan passionately invoked the image of inmates being burned at the stake.

“To an extent that’s unusual even in this court, you have been listening rather than talking,” Chief Justice John Roberts Jr. apologetically told an attorney at one point, adding that “hopefully we’ll have a chance to hear what you have to say.”

As of Jan. 1, there were 3,019 inmates awaiting execution in the United States, according to the Death Penalty Information Center. Nearly one-quarter of the total are in California, with Florida and Texas ranked second and third, respectively, in death row populations.